Sick LeaveStarting in 2016, Oregon began requiring all employers to allow sick leave to employees. The leave is paid or unpaid depending on the employer’s number of employees. Employers may now limit the number of hours of sick time employees can accrue to 40 hours in a year and cap total accrual balances, including any carry over from prior years, to 80 hours.

New Payroll TaxAs of July 1, 2018, employers must withhold and pay to the Oregon Department of Revenue one-tenth of one percent (0.1%) of total wages earned by employees residing in or performing services in Oregon. The revenue from this tax is for public transit improvements.

Earned Income Tax Credit NoticesOregon’s Bureau of Labor and Industry (BOLI) is making rules for employers to give written notice to employees of the availability of state and federal earned income tax credits. Notices must be in English and the language used to communicate with employees and must provide website addresses to find additional information. Notices will need to be emailed or mailed at the same time or with the employee’s W-2 form.

Equal PayOregon’s existing equal pay law prohibits paying workers of the opposite sex unequally. Beginning on January 1, 2019, the law expands to encompass all members of a protected class (race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability, and age). It will be unlawful to:

• Discriminate in compensation for work of comparable character based on an employee’s membership in a protected class.• Compensate an employee more than is paid to employees of a protected class for work of comparable character.

However, employers may compensate workers unequally based on seniority, merit, production, workplace location, travel, education, training, or experience. Also, compensatory and punitive damages will be disallowed against an employer who, within the three years before a civil action was filed, completed an analysis of the employer’s pay practices and took steps to eliminate any wage differentials.

Pay HistoryEmployers will want to strike questions about prior compensation when interviewing prospective employees. Employers or prospective employers can no longer seek the salary history of an applicant or employee. Oregon’s Bureau of Labor and Industry (BOLI) may enforce this law starting on January 1, 2019, and individuals may file a civil suit starting on January 1, 2024.

You decide to own your own business.But, you are still employed.Duties in your current job include finding businesses to buy.You find one.You buy it for yourself.It’s in the same industry as your current employment.Boss sues you.

These facts were heard in a jury trial this week. We represented the employee…and prevailed. Generally, you cannot compete with your boss. However, there are lessons to be learned–for both employer and employee–in our successful defense of our client.

Following is a synopsis of the employer’s legal claims and our arguments to defeat each of them.

Breach of Noncompetition AgreementWe convinced opposing counsel to withdraw the breach of noncompetition agreement claim before submitting it to the jury for consideration. Oregon has strict rules for noncompetition agreements to be enforced. For example, notice that a noncompetition agreement is required must be given two weeks before employment, or the agreement must be signed as part of a promotion. Also, the employee’s compensation must exceed the median income of a four-person family.

Breach of Fiduciary DutyAn employee owes a fiduciary duty of loyalty to his employer. Competing with one’s own boss usually breaches that duty. We successfully sidestepped this claim by arguing that the employee was merely taking steps to compete. Courts have held that an employee may compete with his boss after employment and, during employment, may take steps to compete.

Intentional Interference with Prospective Economic RelationsFor this claim, the employer had to show that our client interfered with a prospective business opportunity through improper means or for an improper purpose. The employer argued that our client undercut him. He claimed that our client bought the business without his knowledge or consent after learning of his offer. The employer testified that he already had a “handshake” deal. We convinced the jury that the employer was only willing to make a low-bid offer and that our client negotiated after their potential deal was dead.

Unjust EnrichmentUnjust enrichment occurs when a person confers a benefit, the recipient is aware of the benefit, and it would be unjust to allow the recipient to retain the benefit. The employer argued that he conferred a benefit when the employee learned of the business opportunity through his employment and that it would be unjust to allow the employee to keep the business. Unjust enrichment is considered an equitable remedy, basically meaning that it taps into that gut feeling of whether a person’s conduct is right or wrong. Most likely, the jury was influenced by the inconsistencies we exposed in the employer’s testimony as well as his defensive and aggressive behavior we prompted on the stand.

As with all jury trials, the outcome is never certain. Every trial ends with that moment of silence when the jury reenters the courtroom with its verdict. The lead juror is called forward and hands the verdict form to the judge. Finally, the judge reads aloud a decision having significant ramifications for the anxiously awaiting parties. While good lawyering helps, knowing possible claims and defenses before a dispute even begins can directly influence the result.

Recently, I drove past the vineyards and antique shops for a trial in Yamhill County. The dispute was over land ownership and involved the legal theory of adverse possession. I represented a young couple who found themselves fighting to hold onto the very land they had purchased. A developer, through his corporation, claimed that he had acquired part of their land through adverse possession. When threatening to burn down their house, firing his shotgun, and running them down with his truck did not work, he filed suit to have his claims legally recognized.

Adverse possession allows one to acquire land without purchasing it, even if a recorded deed is in another’s name. One has to prove that the adverse use of the land is actual, open and notorious, exclusive, hostile, and continuous–for a 10-year period. As of 1990, Oregon added the requirement that one has to prove an honest, objective, and reasonable belief of actual ownership of the land.

Opposing counsel argued that a long-standing fence running through my clients’ property should be the new property line. At trial, we were able to shoot holes in his claims. We showed that the fence was not intended as a boundary, that prior owners of my clients’ property regularly drove on the property outside of the fence, and that an ongoing feud over the property line negated any reasonable belief of ownership. We prevailed on all claims and convinced the judge to order the removal of an encroaching garage from the disputed property.

To protect against an adverse possession claim, you should periodically use the land, erect a fence or other barrier on the boundary, or otherwise provide notice that the land belongs to you. And if there is a duel, please do not hesitate to call if you need a gunslinger (though no gun here, just legal arguments).